Heirs Of Superman Creators Appeal To Try To Get The Half Of The Baby The Judge Didn't Give Them

from the how-super-is-that dept

We've been following the various legal battles over copyright termination rights with great interest, as it's a pretty big meteor heading towards various content companies -- especially record labels (why do you think Bronfman wants to sell Warner Music?) and movie studios. If you're unfamiliar with the deal, it's a bit complex and down in the weeds, but a (greatly) simplified version is that current copyright law lets the original creators of works have a termination right in those works, meaning that after a certain period of time, they can "reclaim" those works, and basically take back the copyright if they originally had assigned it to someone else (such as a big company). This right cannot be negotiated away. There is a big exception, however, which is that it doesn't apply to "works for hire" (and a few other exceptions which we won't get into). Of course, the exceptions were decided somewhat randomly, basically by whose lobbyists were the loudest at the time.

For years, the record labels regretted not having label musicians included as "works-for-hire," eventually leading to the famous case of a staffer sneaking language into an unrelated bill in the middle of the night, which extended such rules to musicians. That plan almost worked until musicians found out about it, freaked out, and had the law very quickly rolled back. I tend to think that termination rights are silly and really don't make that much sense to me. However, they're a symptom of the real problem: which is that copyright law is too damn long. Thus given the existing length of copyright, then I can see that termination rights are better than no such rights, because at least it gets the copyright back to the artist (or the artist's heirs), and if someone has to have such unnecessary monopoly protections, it might as well be the artist.

The issue is that an awful lot of these terminations are about to come due, and the entertainment industry is, to put it mildly, freaking out. The big case to follow has been the one trying to terminate the rights to Superman by the heirs of Superman's creators Jerry Siegel and Joe Shuster. In 2009, the court sided with the estate of Jerry Siegel, deciding that Superman wasn't a work for hire, and thus the termination rights existed. However, the court did a bit of Solomonic baby-splicing, in that it made it clear that the terminations could only cover certain parts of Superman. However, that's apparently presenting something of a problem for the heirs (and the lawyer, Marc Toberoff, who many consider to be the main driving force behind these terminations, and who had set up a business to exploit such "reclaimed" rights). So, they're appealing, to try to get even more rights. As THREsq explains:

Throughout years of legal maneuvers (including Warners' still-pending lawsuit against the heirs' lawyer Marc Toberoff for allegedly interfering with contracts), it has never been determined whether the Shusters and Siegels can take back other key elements of the Superman mythology, such as Lex Luthor and Kryptonite.

That makes it difficult for Toberoff and his clients to peddle Superman rights to another studio (and pressure Warners into a settlement). So he's now appealing the limited grant of rights to the 9th Circuit, hoping that the appeals court will finally determine who owns what.

"It's cutting to the chase," Toberoff us, adding "it is widely recognized that Judge Larson's rulings on summary judgment largely favored the Siegels in upholding the validity of their termination as to Action Comics No.1, containing the core Superman format and characters."

Of course, the better question is why Superman isn't in the public domain by now.

Reader Comments

Original script.

"Of course, the better question is why Superman isn't in the public domain by now."
When the last Superman movie came out, people were rather surprised to see an "emo" man portraying the Man of Steel.

They hated the movie, and rightfully so.

But what they didn't realize was the script was changed at the last minute. Here's a snipped.

Lois Lane: "You never did explain why you left. Care to now?"
Superman: "You're right, dear. You see, I'm awesome. I can fly. I can withstand bullets. I'm practically indestructible. But no matter how much crime I stopped, lawyers using intellectual property laws in their favor constantly wiped me out. As a man who stands for Truth, Honor, and the American Way, it was time I left if this bullshit is what I was really fighting for. It became too depressing."

I'm not sure why the script was changed, but I liked the original and believable version better.

By the way: dibs on the spandex that's so out of date, Superman looks more like Pansyman.

This is great...

Frankly, the whole copyright & patent mess needs to just get so fouled up so quickly and so completely that maybe, just maybe we will have real reform. Until then, only the lawyers, senators and congressman will get rich.

Baby-splicing?

Re: Baby-splicing?

I believe he is referring to the story of the wisdom of King Solomon.

Two women claiming a baby is theirs. King Solomon orders the baby to be cut in half so each woman can half half the baby. First woman says "Fine!" second woman says "No! Give her the baby, but don't cut it in half! That'll kill it!" and thus it was worked out that the second woman was the baby's mother because of how much she cared about it.

Heirs???

I remember reading about the heirs of George Gershwin. It was decades ago and the article recounted how the Gershwin family, without the benefit of ever writing a note of music was living very comfortably on their royalties. Hummm...I thought. I suppose I'd do it too if I could. But should a biological accident guarantee some folks a lifelong stipend?

If you have ever read the oldest Superman comics you begin to see how little the original character resembles his many later incarnations. As created, in the 1930's, he was simply a very, very strong man. He could be hurt, he had his limitations and he could NOT fly! I too believe Superman's creators were treated in a shabby manner. But exactly why their descendants, removed by 80 years from the event in question, should automatically receive a great deal of money is not clear to me.

Re: Heirs???

Precisely! I recall a post on techdirt about how Fitzgerald's grand-children made more in royalties off of The Great Gatsby than he did, even adjusted for inflation.

Copyright is about creating incentives for creative works, right? What incentive is there for Fitzgerald's grandkids to write books? Would owning the copyright on Superman encourage Siegel or Shuster to make any comics?

Re: Re: Heirs???

Re: Heirs???

While I don't disagree much with the sentiment, there _is_ a good argument as to why the termination right should be in the heirs and devisees: in particular, knowing that you can provide a benefit to your offspring and theirs encourages you to innovate and create.

Note that someone late in their life or facing a terminal illness has no incentive to create from a copyright law that will only reward them in life, particularly if it seems to them likely that their work will not be published until after they are dead. (Which is not to say that they do not have other incentives, or that the incentive from copyright law is necessary or even that it is directly felt by most content creators.)

Re: Heirs???

Well to be honest I'd be pretty peeved if I left my estate to my heirs and they weren't able to enjoy that benefit, be it the Kent family farm, shares in the Metropolis Daily Planet Newspaper, or a work of fiction I'd created.

As for Siegels Superman not resembling the versions that came later I disagree. I've read the early comics, and pretty much everything is there.
Going back to the early 30's Siegel had worked out a back story that showed Clark Kent as kid struggling to find his place in the world - rejected by his peers ala modern day Smallville. This had an alternative origin where Superman came from Earth's distant future.

Siegel certainly invented Lex Luthor.

by 1940 he'd written K-Metal, a story that created Kryptonite by another name - K-metal took away Superman's powers and gave strength to normal humans.

While Superman started out leaping his powers grew under Siegels pen to include flight, and heat vision.

The only significant thing that DC can claim to own is the current version of 'S' Shield

This is why Copyright should just cease to exist and all existing and new works become Public Domain. If no one has some other incentive to write another bloody word or record another song, I don't care. Some people wouldn't be happy, but they can just suck it up. Enough is enough!!! Patents, too!

lol, superman will NEVER be in the public domain. if the families didn't care about it, DC comics would certainly never allow it to slip from their control. the IP's the biggest money maker for the company.

i suspect, unless their is major changes to copyright law, IP's will never slip into the public domain ever again. the creator's or their families will want to milk their work for as long as they can, and find loopholes to prevent PD.

I mean Tolkien's work should be public domain by now, but his son will never allow it.

DC control the canon

Seriously, you can write al the creepy, non-canon fanfic you like, but if DC don't okay your fanfic, then Superman didn't do it, and therefore it didn't happen.

DC control the canon, therefore they control the character. The only way to follow the story of the character is to follow the individual DC publications, which DC (presumably) still have individual copyright on.

The only danger here is that someone will out-innovate DC, producing better comics and a more popular version of the character. Nobody can do that. Nobody can innovate with the Superman character because of copyright.

Re: DC control the canon

Screw the families, i draw my own comics, edit my own movies and play my own videogames, it takes time, but superman is mine, to enjoy. as for the creators, they cared about the fans, his daughter doesn't and the lawyer now owns 74% of superman. well just condiser him dead

Superman heirs are up in the night.

I'm all for musicians getting the rights back to their music. Their music was the same when the musician originated the song as it is after a record label owned it for decades. The intellectual property that is Superman is a completely different story altogether, however. It is difficult to find any similarity between the Superman today, and the one of the late 30s and 40s. For instance, (and thanks to the TV shows like Smallville, and many popular animated series, the following require very little explanation):
Lana Lang, Pete Ross, Krypto, Chloe Sullivan are all post Siegel and Shuster. All the storyline impacting team ups, like Batman/Superman (World's Finest), The legion of Superheroes, the frakkin' Justice League! And finally, ALL the villains. ALL of them, not just Lex Luther, save a very tiny few that are hardly worth mentioning are not and never have been the property of the Siegel or Shuster estate. Superman himself might not have changed that much but almost every storyline specific event, character, and association that defines the look and feel of the character known as Superman did not originate with Jerry Siegel and Joe Shuster.
Finally, if Jerry Siegel and Joe Shuster were alive today, I would have a lot more sympathy. The original creators would at least be justified in furthering the Superman property in a direction they may have originally intended, but their heirs? Creativity and love for one's own accomplishments isn't passed down to heirs like nuemonic memory. The heirs didn't spend countless hours, or years sculpting a character through all the good and bad times, (The late 80's were very dark for Superman). And the heirs definately didn't win the The Will Eisner Comic Industry Award!
Screw the heirs.
Thank you,
Ron Morris

Re: Superman heirs are up in the night.

This is why the Solomonic judge did a pretty good job (notwithstanding a stupid law). He allowed the heirs and devisees to grab the copyright to Action Comics #1. That's it, and he did not give them the copyright to the entire Superman canon. If they want to reissue that comic or create derivative works from it, they may. But they do not get the use of the rest of the Superman universe.

Why again don't we like termination rights?

The copyright law is strange and mixed up. Even if you disregard any change since 1978 (and are thus considering 56-year copyright terms,) it was already pretty messed up. In other words, it is fundamentally flawed, excessive term length merely exacerbates and illustrates the problems. But the concept of a renewal term and termination of assignments are some of the only elements that actually encourage progress in the useful arts. Why again do we not like those?

Take a comic book (or, for that matter, any serialized work). Each issue is copyrighted. Say we are using a 56-year copyright term. After the first 28 years, the right to the renewal term belongs to the author's family. So they can now resell that right, say to a new publisher, who can create a new serial starting with (and derivative of) the issue in which she or he owns the rights.

But that need not kill off the first publisher: as long as they do not create any further works derivative of the first issue, they may continue to create works derivative of later coming issues in which they continue to own the rights (provided those issues are not themselves derivative of the first issue). So the renewal term (and concommitant termination right) permits there to be two "alternate universes" of derivative works. Has this been tested (for instance, by the assignee of the renewal term suing the original publisher for creating derivative works based on derivative works based on derivative works that eventually harken back to the original)?

Incidentally, renewals ended in 2005, which means termination claims for pre-1978 works should all be in or expired by 2010. Later-coming works have a 25- or 35-year one-shot termination. Those are the ones that Hollywood et al. are concerned about: not Superman, but maybe Manhunter.

If Superman Were To Fall Into The Public Domain ...

... it would retroactively cease to exist. Because the only incentive to create the work came from the copyright in it. Never mind that the copyright term was only supposed to be 50 years at the time, the fact is in the minds of its creators that was actually the same as “forever”. So if the term ever actually ends, that means the bargain is over, as though it never been struck. So the entire history of Superman will disappear in a puff of copyright logic.

heirs of superman

It is difficult to find any similarity between the Superman today, and the one of the late 30s and 40s.

Superman today, like Superman of yesteryear, came from the doomed planet Krypton. His parents were Jor-L(El) and Lara. He was raised on Earth by a childless farm couple named Kent and they named him Clark. Both old and new versions of Superman wear a costume comprised of blue tights, external red briefs, red boots and a red cape. He has a yellow belt and an "S" shield on his chest. He has a dual identity. He's a mild-mannered reporter or a great metropolitan newspaper.

It doesn't matter that over the years he was powered up, or powered down, or could or couldn't fly, or did or didn't have x-ray vision. The fundamental truths of Superman still remain to this day. A child today could recognize Superman of 1938 and vice versa.